Puzhakkal Edam Alias Puthen Edon And Others v. Kunchappan .

1. This case was originally filed as a civil revision petition to revise an order of the Appellate Authority (Land Reforms), Trichur in A.A No. 100 of 1971 passed on 28-4-1972. Subsequently by an order of this Court dated 10-1-1973 it has been converted as an Original Petition under Articles 226 and 227 of the Constitution. It is necessary to briefly state the facts of the case. The petitioners herein obtained the property concerned in this case pursuant to a final decree passed in a partition suit in O.S No. 402 of 1938 in the Alathur Munsiff's Court. There was a Receiver appointed for all the suit properties in that case. The receiver was managing this property by auctioning the right to take its income from year to year. For the year 1134 M.E, it appears that the respondent purchased that right. In an auction conducted for the year 1135, the right was purchased by a third party from whom it was taken by the respondent, who conducted the cultivation in that year. It is seen from Ext. B-1 dated 5-3-1960 that, consequent on the termination, of the aforesaid arrangement, the Receiver, who had possession of the property, handed over the same to the first petitioner on behalf of the petitioners. But the respondent trespassed on the property on 10-5-1960 Thereupon the first petitioner instituted a suit O.S 172 of 1960 in the Munsiff's Court, Alathur for recovery of the possession of the property with mesne profits. That suit was decreed by the trial court. Ext. B-3 dated 14-2-1964 is the judgment. There was an appeal to the Subordinate Judge's Court, Palghat. The appeal was dismissed; and Ext. B-4 dated 4-7-1967 is the judgment of the appellate court. The first petitioner then applied for execution of the decree; and he took actual possession of the property from the respondent on 6-11-1967. In the meanwhile, the respondent had filed O.A No. 382 of 1962 before the Land Tribunal. Palghat for fixation of fair rent for the property alleging that he was a lessee thereof. That was consistent with the case which he had pleaded in O.S No. 172 of 1960 above referred to. That application was dismissed by the Land Tribunal holding that the respondent was not a tenant. Subsequently in the light of the Kerala Land Reforms (Amendment) Act, (Act 35 of 1969), the respondent filed an application under Section 13-A of the Act for restoration of possession of the property stating that he would be a tenant as defined in the Amendment Act, that he was dispossessed after 1-4-1964, and that he was, therefore, entitled to restoration of possession. The petition was dismissed by the Land Tribunal, from whose order, the respondent filed an appeal before the Appellate Authority (Land Reforms), Trichur. The Appellate Authority held that the property was in the occupation of the respondent under a licence granted by the first petitioner as per Ext. A-1 dated 20-2-1959, that the respondent was thereafter dispossessed only after 1-4-1964, and that by virtue of the provisions in the Amendment Act 35 of 1969, the respondent would be a tenant entitled to restoration of possession of the property under Section 13-A. It is this order that is sought to be set aside in this Original Petition.

2. The question for decision is whether, on the facts of the case, the respondent would be entitled to the benefits of sub-section (1) of Section 13-A of the Act, This sub-section reads,—

“13-A. Restoration of possession of persons dispossessed on or after 1st April, 1964.—

(1) Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage or in any judgment, decree or order of court, where any person has been dispossessed of the land in his occupation on or after the 1st day of April, 1964, such person shall, if he would have been a tenant under this Act as amended by the Kerala Land Reforms (Amendment) Act, 1969, at the time of such dispossession, be entitled subject to the provisions of this section to restoration of possession of the land:

Provided that nothing in this sub-section shall—

(a) apply in any case where the said lard has been sold to a bona fide purchaser for consideration before the date of publication of the Kerala Land Reforms (Amendment) Bill, 1968, in the Gazette; or

(b) entitle any person to restoration of possession of any land which has been resumed under the provisions of this Act.”

3. Two conditions are necessary to avail of the benefit of the above provision. One is that the person claiming restoration should be one who is dispossessed of the land in his occupation on or after 1-4-64. The second is that he would have been a tenant under the Act as amended in 1969 at the time of his dispossession. The first condition is admittedly satisfied. The controversy is regarding the second condition. According to the respondent, he was in possession of the land as a licensee at the time of dispossession; and he would have been a tenant under Section 10 of the Act, Section 10 reads.—

“10. Certain other persons to be deemed tenants,— Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of court, the following classes of persons shall be deemed to be tenants;—

(i) a punam or kumri cultivator;

(ii) a licensee;

(iii) a varamdar;

(iv) a vechupakuthidar; and

(v) a person holding land situated in any part of the taluk of Hosdrug or Kasaragod to which the Malabar Tenancy Act, 1929 did not extend, under a transaction described in the document evidencing it as bhogye, otti, nattotti, arwar, illidarwar or krithasartha illidarwar, but not being a usufructuary mortgage as defined in the Transfer of Property Act, 1882.”

4. The finding of the appellate authority was that the respondent would have been a licensee at the time of his dispossession. This finding is just the opposite of the finding in O.S 172 of 1960 in the file of the Alathur Munsiff's Court, which held that the respondent was a trespasser. That decision, as already stated, was also affirmed by the Appellate Court. The Appellate Authority has totally ignored the above finding, which has become conclusive as regards the parties to that litigation. A trespasser cannot automatically become a licensee. The term “licensee” is defined in Section 2(30) of the Act as follows:—

“‘licensee’ means any person who is in occupation of any nilam belonging to another and who, under any local custom or usage or under an agreement, cultivates that nilam with paddy for a remuneration and with risk of cultivation, but does not include a person who cultivates the nilam of another merely as an agent or servant;”

5. The above definition would indicate that a person who is in occupation of a nilam i.e paddy land under the circumstances mentioned therein alone is recognised as “licensee” under the Act, It is contended that the respondent would not be a licensee within the above definition. I do not propose to consider this contention, since it has not specifically been raised in this petition, and it is also unnecessary for me to express any view on that question, in the light of my finding that the respondent is not a licensee in any sense of that term.

6. An objection has been raised by the respondent that this petition is not maintainable, since the appellate authority whose order is sought to be sat aside has not been impleaded. This raises a question of considerable importance, namely whether a petition or a proceeding in the High Court under Article 227 of the Constitution to revise the order or proceeding of a court or Tribunal is maintainable without impleading the court or the Tribunal concerned. To put it differently, whether the court or the Tribunal concerned has a right of hearing before the High Court interferes with its order or proceeding. It was conceded that in the case of a Subordinate Court, it was not necessary. If that be so. I fail to understand why it should be otherwise in the case, of Tribunal. It is the same power that the High Court exercises in both cases. Both the court and the Tribunal are subordinate to the High Court in that respect. But judicial opinion seems to be divided on this question.

7. In support of his contention that the Tribunal whose order is sought to be quashed is a necessary party to an action under Article 227 of the Constitution, counsel for the respondent relied on the following observation appearing in a Division Bench decision of the Nagpur High Court in Naziruddin v. P.S Lawale, AIR 1956 Nag 65:—

“It may also be added that the judgment of the revenue court at the earlier stage, that is to say of the Deputy Commissioner, has not been put in, nor has he been impleaded in these proceedings; but that is only a technical matter. We refer to that matter only to bring to the notice of the litigants that if they wish a certain order to be quashed, it is necessary to implead not only the appellate authority but the primary authority also, even though it may be a judgment of affirmance.”

8. With great respect. I disagree with the above statement. The effect of an appellate order is to merge the original order in it; and thereafter the appellate order alone is in force, and the original order gets itself effaced. Therefore, the impleading of the original authority becomes unnecessary, when the appellate order is sought to be quashed. Again as already indicated by me, I fail to understand why a Tribunal should be heard, when its order is sought to be revised under Article 227 of the Constitution.

9. There is a detailed consideration of this question by Dua, J. of the Punjab High Court in Hudi Goshaon v. Sudi Goshaon, AIR 1962 Punj 467. The following passage is instructive:—

“Before parting I may also notice a preliminary objection raised on behalf of the respondents to the competency of the petition under Article 227 of the Constitution. It was urged that the Senior Subordinate Judge is a necessary party to these proceedings and in his absence from the array of respondents this Court has no jurisdiction to interfere with the impugned order. I am unable to sustain this contention. Article 227, which is for all practical purposes a revival of Section 107 of the Government of India Act, 1915 is not an article which in terms provides for writs etc.; in this respect it is distinguishable from Article 226 of the Constitution which alone provides for writs etc.”

10. Reference may now be made to a decision of the Supreme Court in Udit Narain Singh v. Board of Revenue, AIR 1963 SC 786 on which reliance has been placed by counsel for the respondent. That case arose out of a petition under Article 226 of the Constitution to quash an order of the Board of Revenue cancelling the petitioner's license to run a liquor shop. Dealing with the question who are all necessary parties to such an action, the court said—

“As a writ of certiorari will be granted to remove the record of proceedings of an inferior Tribunal or authority exercising judicial or quasi-judicial acts, ex hypothesi it follows that the High Court in exercising its jurisdiction shall also act judicially in disposing of the proceedings before it. It is implicit in such a proceeding that a Tribunal or authority which is directed to transmit the records must be a party in the writ proceedings, for, without giving notice to it, the record of proceedings cannot be brought to the High Court. It is said that in an appeal against the decree of a Subordinate Court, the court that passed the decree need not be made a party and on the same parity of reasoning it is contended that a tribunal need not also be made a party in a writ proceeding. But there is an essential distinction between an appeal against a decree of a Subordinate Court and a writ of certiorari to quash the order of the Tribunal or authority; in the former, the proceedings are regulated by the Code of Civil Procedure and the court making the order is directly subordinate to the appellate court and ordinarily acts within its bounds, though sometimes wrongly or even illegally, but in the case of the latter, a writ of certiorari is issued to quash the order of a Tribunal which is ordinarily outside the appellate or re-visional jurisdiction of the court and the order is set aside on the ground that the Tribunal or authority acted without or in excess of jurisdiction. If such a Tribunal or authority is not made party to the writ, it can easily ignore the order of the High Court quashing its order, for, not being a party, it will not be liable to contempt. In these circumstances whoever else is a necessary party or not the authority or Tribunal is certainly a necessary party to such a proceeding.”

11. Counsel submitted that the same principle would apply to an action under Article 227 of the Constitution. I am unable to agree. In the above decision, the court was only dealing with the character of a writ of certiorari under Article 226 of the Constitution and the question whether the Tribunal or authority whose order is sought to be quashed is a necessary party to an action for such a writ. The nature of a proceeding under Article 227 is different, as pointed out by Dua, J. in the decision of the Punjab High Court referred to above.

12. There is a clear cut pronouncement on this question by a Division Bench of the Gujarat High Court in Gopichand v. Western Railway, AIR 1967 Guj 27. Justice Bhagwati, who delivered the judgment of the court stated,—

“Now there can be no doubt that in a petition for relief under Article 226, the Tribunal whose order is impugned in the petition must be made a party to the petition so that the writ sought from the Court can go against the Tribunal; but if the petition is for relief under Article 227 it is well settled that the Tribunal whose order is impugned in the petition need not be made a party to the petition. The reason is that by entertaining a petition under Article 227 the High Court does not seek to exercise jurisdiction to issue any high prerogative writ; the jurisdiction which the High Court exercises under Article 227 is of superintendence— a jurisdiction somewhat analogous to the revisional jurisdiction which the High Courts have under diverse statutes and just as in an application for revision it is not necessary to make the Court whose order is sought to be revised a party to the application, so also in a petition invoking the jurisdiction of the High Court under Article 227, the Tribunal whose order is sought to be challenged is not a necessary party.”

13. In support of the above statement, the learned Judge has relied on a decision of the Supreme Court, in Muhammed Enamual Haque v. Muhammad J. Hussain, Civil Appeal No. 985 of 1963 decided on 5-5-1964 (SC). This decision does not seem to have been reported; and I have not been able to get a copy of it. But this decision has been noted at page 142 of Volume VI of the Supreme Court Notes by R. Gopalakrishnan. The relevant part of the note reads.—

“There is neither practice nor binding authority to support the contention raised by the counsel for the respondent that in a proceeding for an order under Article 227 of the Constitution it is necessary to implead the court or tribunal against the order for which the proceeding is initiated by the High Court. By entertaining a petition under Article 227, the High Court does not seek to exercise jurisdiction to issue any high prerogative writ — jurisdiction which the High Court exercise under Article 227 is of superintendence — a jurisdiction somewhat analogous to the revisional jurisdiction which the High Courts for a long time past have been invested under diverse statutes. To a proceeding invoking jurisdiction of the High Court under Article 227 of the Constitution the Tribunal was not a necessary party, and in an appeal against the order passed in personam against the appellant in that proceeding the Tribunal is not a necessary party.”

14. I think that, in the light of the above authorities, the proposition is well-settled that the court or tribunal whose order is sought to be revised under Article 227 of the Constitution is not a necessary party to the proceeding before the High Court. The objection raised by the respondent to the maintainability of this Original Petition cannot, therefore, succeed. In the result this petition is allowed, and the order of the Appellate Authority (Land Reforms). Trichur in A.A No. 100 of 1971 is set aside. There will be no order as to costs.

15. Petition allowed.